Issue link: https://maltatoday.uberflip.com/i/620229
42 maltatoday, SUNDAY, 27 DECEMBER 2015 42 Opinion T he first Hall of the Civil Courts presided by Mr Justice JR Micallef in Francis Spiteri –v– Lawrence Camilleri held on 21 December 2015, that a purchaser of a property cannot wriggle out of a promise of sale agreement, if he himself withdraws an application for a bank loan. In a court application, the plaintiff, Francis Spiteri explained that both parties had entered into a promise of sale agreement on 5 November 2011 on a property in Marsascala. On 24 January 2012, the same parties entered into an additional agreement to clarify what works had to take place in this property prior to the signing of the final contract. However, the defendant, Lawrence Camilleri, failed to appear on the final sale contract and therefore, Spiteri asked the court to order the defendant to sign the sale contract. In his statement of defence, Camilleri held that the action was not filed on time and that the works were not complete. Mr Justice Micallef in his judgement first examined whether the action was filed on time. The facts show that the promise of sale was to expire on 7 May, 2012 and that the bank loan had to be approved by 15 December, 2011, on the promise of sale a 10% deposit was paid by the defendant. The agreement of 24 January, 2012 was not an extension of the promise of sale, but a clarification on which works had to be carried out. The parties had met at the Notary's office on a number of occasions to iron out problems. In one particular meeting the police had to be called in since a brawl erupted. Camilleri accused Spiteri of not keeping to the measurement of a garage door and on the quality of the floor tiles. The Notary in her testimony also pointed out that the defendant's application for a bank loan was withdrawn and therefore, the contract could not have taken place. It seems that the parties did not produce evidence or make submissions on the first plea, but the court held that it would still be bound to examine this plea since it was not withdrawn. According to Article 1357(2) of the Civil Code the promise of sale is extended a further 30 days, if one of the parties files a judicial act calling on the other parties to appear on the final deed. In the event that no contract is signed, a court suit would have to be commenced within these 30 days. The judicial act need not be a judicial letter or protest, but may be the application of the court case. The evidence showed that before the 7 May, 2012, the parties met for a final time in April 2012 at the Notary to see whether they could proceed, but it was clear that no agreement was to be reached. The application filed by the plaintiff mentions a judicial letter dated 3 May, 2012, however, no copy was presented. The Court commented that it was not up to the court to make its own verifications, however, Article 627(e) of the Code of Organisation and Civil Procedure says that acts registered in court are admissible as evidence without needing authentication. Since the plaintiff gave details of the judicial letter, it could and was verified, where the judicial letter called upon Camilleri to appear on the contract of sale of the property. The Court then turned down the plea. On the merits of the case, the Court explained that there have to be serious reasons for one not to sign the sale contract and in general the reason would be justified if it brought about a grave consequence or else went contrary to what was agreed or else there was no value to the contract. The reason must not depend on any of the parties and must not be a result of bad faith. This must exist until the promise of sale is valid. For example if the promise of sale lists a condition that the purchaser obtaining financing from the bank and the facility is not given during the validity of the promise of sale, this would be a good reason for the purchaser to refuse to appear for the final contract. In this particular case, the promise of sale had two principal conditions. The first was that works be carried out in the property before the purchase and the second that the defendant obtains a bank loan. The principle at law is that the conditions of any agreement must be carried out as the parties intend. However, the court took into consideration two issues, the first being that the promise of sale was valid for a period of time and that time was never extended. The second issue is that the conditions were for the defendant's benefit and not in the plaintiff's interest. With regard to the condition that the defendant had to obtain a bank loan according to the promise of sale, this had to take place within three weeks from the signing of the agreement and he was to inform the plaintiff of this. It was discovered that the facility was granted by a bank and in fact, the Notary attended a branch to hand over a copy of the promise of sale agreement. However, the defendant had withdrawn the application for his loan. The Court held that this condition was satisfied and the fact that the defendant withdrew the loan application, showed that he no longer required this condition and could sign the final sale contract without a loan. The defendant renounced himself this condition. Therefore, the defendant cannot argue that the promise of sale agreement was no longer valid, when he himself triggered the renunciation of a loan. With regard to the issue on the works that had to be carried out, the court noted that it was not up to the plaintiff to carry out the works but merely to finance them. The main complaint was on works carried out and not on works which were not carried out – which included the quality of the tiles and if this was the case the law provided the defendant a legal remedy, however, he had no right not to conclude the sale of the property. The Court then moved to uphold the plaintiff's request and order that the sale be published in 22 January, 2016. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt Buyer will have to sign purchase contract even if he withdraws an application for a bank loan This week, the court ruled in favour of the farmers and Friends of the Earth Netherlands on all procedural issues in the case, which has dragged on for more than seven years because of various legal obstacles raised by Shell which seriously delayed proceedings. Amongst other things, The Court ruled in favour of Friends of the Earth NL and the Nigerian farmers regarding the issue of access to internal company documents, which a lower court had earlier denied. In 2008, four Nigerian citizens together with Friends of the Earth Netherlands took Shell to court over oil spills that had polluted their fields and their fish farming ponds. Once proud owners of flourishing farms, they were now reduced to poverty and forced to survive on odd jobs, because the oil spills were never properly cleaned up and their land and fish ponds remain unusable to this day. The plaintiffs demand that Shell cleans up the oil spills, compensates them for their losses and prevents new leakages by ensuring that the company's pipelines are properly maintained and patrolled. Friends of the Earth Netherlands is a co- plaintiff. In January 2013, the courts in The Hague ruled that Shell was guilty of causing pollution on the land of Friday Alfred Akpan. Shell appealed this decision, while Friends of the Earth NL and the Nigerians appealed the rejection of the demands of the remaining three farmers. This is the first time in legal history that access to internal company documents was obtained in court. An appropriate ruling, because these documents may contain important corroborating evidence regarding the oil spills caused by Shell affecting these farmers' land and fishing ponds. This finally allows the case to be considered on its merits. The case of the four Nigerian farmers is only the tip of the iceberg. For decades, Nigeria has been the stage of the largest oil spill on earth. Over the years, an amount of oil double to that of the sinking of the Deep Horizon in the Gulf of Mexico in 2010 has leaked into the environment. A 2011 report published by UNEP - the environmental organisation of the United Nations - shows Shell doing far too little to clean up the leaked oil. Most birds we see here are migratory, feathered visitors dropping in during their annual migrations across continents. But there are also many species that stay put in their land all their life, and those we never get to see. Among these stay-putters is a group of small acrobatic birds known as tits: great tits, blue tits, coal tits, marsh tits, etc. Some of these are common garden birds, and widespread across Europe. But they stay there all their life or venture a few kilometres at most: the 100km stretch of sea that separates us from mainland Europe is certainly enough to discourage such birds from spreading from Sicily to Malta. No wonder the blue tit (M: primavera) that somehow turned up at Buskett some days ago had birders flocking to spot it – and probably had European tourists walking there wondering what all the fuss was about. Considering this species was last seen here in 1975, a degree of excitement among naturalists is understandable. It was indeed a nice present for Christmas. 486. BLUE TIT GREEN IDEA OF THE WEEK 388: 389 NEW YEAR RESOLUTION – GO VEGETARIAN ONCE A WEEK – One less meat-based meal a week helps the planet and your diet. For each hamburger that originated from animals raised on rainforest land, approximately 55 square feet of forest have been destroyed. Visit Friends of the Earth's website for more information about our work, as well as for information about how to join us. You can also support us by sending us a donation - www.foemalta.org/donate Text Victor Falzon Photo Aron Tanti Victory for Nigerian people in appeal against Shell